IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Buddy R. Allen, :

Plaintiff, : Civil Action 2:12-cv-00619

v. : Judge Graham

Carolyn Colvin, : Magistrate Judge Abel

Commissioner of Social Security,

Defendant. :

REPORT AND RECOMMENDATION

Plaintiff Buddy R. Allen brings this action under 42 U.S.C. §§405(g) and

1383(c)(3) for review of a final decision of the Commissioner of Social Security denying

his application for Supplemental Security Income benefits. This matter is before the

Magistrate Judge for a report and recommendation on the administrative record and the

parties’ merits briefs.

Summary of Issues. Plaintiff Allen maintains that he became disabled on

January 1, 2008, at age 36, due to left knee ACL (anterior cruciate ligament), cut tendons

on his right hand, back problems and depression. (PageID 165.) 

Plaintiff argues that the decision of the Commissioner denying benefits should be

reversed because:

• The administrative law judge’s determination of plaintiff’s physical

residual functional capacity violated the treating physician rule and

lacked the support of substantial evidence;

• The administrative law judge’s determination of plaintiff's mental residual

functional capacity violated Social Security Ruling (“SSR”) 96-6p and

lacked the support of substantial evidence.

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Procedural History. Plaintiff Allen protectively filed his application for

supplemental security income on August 27, 2008, alleging that he became disabled on

January 1, 2008, at age 36. (PageID 145-47.) The application was denied initially and

upon reconsideration. Plaintiff sought a de novo hearing before an administrative law

judge. On October 27, 2010, an administrative law judge held a video hearing at which

plaintiff, represented by counsel, appeared and testified. (PageID 66-81.) A vocational

expert also testified. (PageID 81-86.) On October 28, 2010, the administrative law judge

issued a decision finding that Allen was not disabled within the meaning of the Act. 

(PageID 43-54.) On May 31, 2012, the Appeals Council denied plaintiff’s request for

review and adopted the administrative law judge’s decision as the final decision of the

Commissioner of Social Security. (PageID 34-37.)

Age, Education, and Work Experience. Allen was born on July 30, 1971. 

(PageID 145, 160.) He has a high school education. (PageID 171.) Allen has past

relevant work as a roofer, sandwich maker and stocker. (PageID 166.) 

Plaintiff’s Testimony. The administrative law judge fairly summarized

Allen's testimony as follows:

The claimant testified that since his back injury from a 25-foot fall, he took

pain medication and went back to work. He finally obtained insurance

through Care Source in January 2008, and then it “all snowballed” as he

underwent surgical procedures. His girlfriend and her mother now

pay all household bills. His back pain stays constant but some days and

some positions are better than others. His back is uncomfortable,

requiring him to change positions. He needs to elevate his feet about two

hours each day, to take pressure off his back. His back pain goes into his

legs and his hips, more on the right, and his feet become numb. He gets

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muscle cramps some days. He testified that he could sit about fifteen or

twenty minutes without moving around. He thought he could sit about

two or three hours total in a day. He could walk about 40 to 45 yards on a

good day or about 20 to 25 yards on a bad day. Out of an eight-hour day,

he could walk or stand about four hours. He would then need to stretch

out. He could lift twenty five to thirty pound if necessary, but not

continuously and could not lift overhead because his right wrist gives out. 

He stated that his carpal tunnel syndrome continues in spite of attempted

surgical release; he cannot pick his thumb straight up, his thumb wallows

around, his hand cramps and draws up, he has to rub it. He cannot feel

pressure sensations on the backside of his hand. He might injure his hand

and not know it. He cannot pick up something small like a penny because

his fingers will not work right. His hand draws when he tries to write to

complete papers after ten minutes or so. He was prescribed morphine,

Tramadol, and a muscle relaxer by his family physician, Dr. Olson, but is

currently taking only Percocet prescribed by his orthopedic surgeon, Dr.

Cassandra.

On a typical day, he watches television, walks around, and goes outside

with his daughter. He watches movies on television, like action movies.

He might try to do dishes once or twice a week. He goes to the grocery

with his girlfriend once a month. He pushes the cart but must lean

on the car. His girlfriend bags and carries the grocery. His girlfriend and

her mother do most of the household chores. He does not do any major

cooking, he is afraid of dropping something or burning himself on the

oven, but he does grill sometimes. The claimant takes garbage out if it is

not too heavy. His brother-in-law cuts the grass. The claimant is able to

dress himself although he has trouble with buttons and zippers. He takes

baths, as they do not have a shower, but sometimes needs help getting out

of the tub. His girlfriend's family visits often, almost daily. If people

come over, he can tolerate them for a little while but gets frustrated and

then must get away from them. It bothers him when people talk about

work or going fishing or hunting because he cannot do those things any

longer. He had a problem with use of alcohol in his younger days, but no

longer drinks as he did then. He drank two or three beers the weekend

before the hearing while sitting around and talking to his girlfriend’s

cousins. He had not had marijuana in two years as he cannot have that in

his system and still get pain medications. He has a bad day at least every

other day and lies down for three or four hours. Sometimes he lies

on a flat hard surface such as the floor in the living room to alleviate his

back pain. 

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(PageID 49-50.)

Medical Evidence of Record. The administrative law judge’s decision fairly sets

out the relevant medical evidence of record. This Report and Recommendation will

only briefly summarize that evidence. 

Physical Impairments.

Kevin Olson, D.O. Allen began treating with primary care physician, Dr. Olson

on May 30, 2007. (PageID 448.) An MRI taken of Allen's lumbar spine on September 20,

2007 showed protrusion of the L4-5 disc with mild canal stenosis, grade I anterolisthesis

of L5 on S1 with moderately severe facet degenerative changes, and L5-S1 disc

extrusion with mild spinal stenosis, severe lateral recess stenosis with displacement of

the right S1 nerve root, moderate to severe right sided foraminal stenosis, and

somewhat developmentally small lumbar canal throughout. (PageID 260.)

On April 28, 2009, Eric Chilton, PA-C, Dr. Olson's physician's assistant, listed

Allen's diagnoses as a herniated disc at L5-S1, L3-4, chronic and morbid obesity. Mr.

Chilton reported that Allen was not a surgical candidate because he smoked a pack of

cigarettes daily and had a body mass index of 43. Allen continued to smoke and would

not lose weight for repair of his lumbar spine problems. Ms. Chilton concluded that

Allen could sedentary work. (PageID 449-51.) 

On July 27, 2010, Dr. Olson completed a physical capacity evaluation on Allen's

behalf. Dr. Olson opined that Allen could stand, walk and sit for two hours in an 8 hour

work day, lift up to ten pounds occasionally, could reach above shoulder level, could

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bend and climb steps occasionally but could not perform grasping, pushing or pulling

or fine manipulation, and cannot squat, crawl, or climb ladders. He could use his feet

for repetitive movements as in operating foot controls. Dr. Olson further remarked that

Allen was unable to sit or stand without breaks, that his knees and back “give” with

stress, that his pain level decreases concentration and focus, that numerous breaks are

needed, that his condition will worsen with age and physical activity, and that

rehabilitation had failed and surgery was pending. Diagnoses included lumbar strain

sprain, spinal stenosis, and glenoid tear of the left shoulder. (PageID 458-59.)

Specialized Orthopaedics & Sports Medicine. Plaintiff was seen for evaluation of

a left knee problem by J. Mark Hatheway, M.D. on July 12, 2007. (PageID 340.) Allen

reported that he had a football injury to his left knee in 1986. He had arthroscopic

surgery back then and he was told then that they took out some cartilage and he had

some ligament problems. He states that he has had some problems with the knee over

the years, but over the past three or four years he has had increasing problems with

locking and episodes of the knee giving way. Examination showed a mild left knee

effusion and positive anterior drawer sign and the Lachman test was mildly positive. 

On September 28, 2007, due to significant instability of his left knee and significant

arthritic changes in the medial compartment, Allen underwent an arthroscopic surgical

repair of left knee anterior cruciate ligament tear and partial medial meniscectomy, with

removal of loose bodies performed. (PageID 342-43.) 

In December 2007, Allen reported he was not going to physical therapy but was

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doing exercises at home; and on August 19, 2008, he reported that he had “jammed” his

knee a month previously. (PageID 329.) 

Arthur Neil Cole, M.D. Plaintiff began treating with neurosurgeon, Dr. Cole, on

November 27, 2007. Allen reported that he had had back pain for several years after

falling about 25 feet. He complained of difficulty walking and radiating pain in his

right leg and hip with numbness and tingling in his right leg and foot. (PageID 368.) 

Neurological examination revealed that Allen's sensation was decreased in the right S1

dermatome and straight leg raising was positive on the right side, but his coordination

and gait were normal. (PageID 366-37).

Dr. Cole performed a microdisectomy at L5-S1 on the right on January 17, 2008.

(PageID 375-76.) When Allen was discharged the following day, Dr. Cole noted his pain

was improved and sensation and motor function were intact. (PageID 248.) Allen

continued to complain of pain radiating to his left leg. Dr. Cole ordered an MRI on

Allen’s lumbar spine to be certain he had not developed a new disk herniation on the

left side. (PageID 358.) The MRI taken on June 24, 2008 showed a developmentally small

canal, stable broad-based central disc protrusion at L4-5, and right paracentral recurrent

disc protrusion at L5-S1. (PageID 390.) An EMG taken of the bilateral lower extremity

on August 28, 2008, demonstrated mild chronic bilateral L5 and S1 radiculopathy. 

(PageID 389.)

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On October 28, 2008, after having two epidural injections1

, Allen reported that he

still had left leg pain and that the second epidural injection had caused increased pain.

An examination was normal. Dr. Cole recommended a lumbar discogram. (PageID

395.) 

A CT scan of the lumbar spine taken on December 16, 2008 showed disc space

narrowing and mild facet degeneration at L5-S1. (PageID 399.)

Orthopaedic Specialists of Central Ohio Allen first saw Thomas Kovack, D.O. on

October 25, 2007, with complaints of wrist pain, swelling, numbness, weakness, and

tingling since an injury to the volar aspect of his right wrist with a piece of glass in 2000. 

(PageID 285-88.) Dr. Kovack found abnormal alignment of the 5th CMC

(carpometacarpal) joint. (PageID 287.) 

Plaintiff was seen by Dr. Kovack on November 1, 2007 for low back pain. Upon

examination, plaintiff's lumbar range of motion was limited, with positive paraspinal

tenderness. Dr. Kovack assessed lumbar spine stenosis, degeneration and arthritis. He

prescribed Percocet and ordered physical therapy. (PageID 292.)

A March 6, 2008, MRI of the right forearm showed edema and atrophy of the

extensor compartment of the forearm with no mass. (PageID 303-04.)

 James Cassandra, D.O. performed a right carpal tunnel release and right forearm

tendon transfer on March 20, 2008. (PageID 272-73.) Following this surgery and with

1

Plaintiff received epidural steroid injections at L5-S1 on September 16, 2008 and October 7,

2008 from James Weiss, M.D. at the Orthopaedic & Spine Center. (PageID 382-88.)

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the help of physical therapy, Allen could extend his fingers and thumb, but he had a

weaker extension of the thumb. (PageID 324, 472.)

An MRI of Allen's shoulders taken on December 5, 2009, showed a tear of

the right superior glenoid labrum and moderate degenerative in the both the right and

left acromioclavicular joints and tendinosis without evidence of rotator cuff tear

bilaterally. (PageID 488-89.) Dr. Cassandra injected cortisone in both shoulders. (PageID

492.) Dr. Cassandra performed arthroscopic surgery for rotator cuff surgery on Allen's

right shoulder on September 7, 2010. (PageID 521-22.) When seen for follow-up on

September 20, 2010, Dr. Cassandra noted he was doing well. He complained of pain at

7/10. (PageID 523.) 

Christopher Vincent, D.O./Neurologic Specialists, Inc. Dr. Vincent performed an

electromyographic and nerve conduction study on November 8, 2007, which showed

radial nerve neuropathy distal to the elbow and mild to moderate carpal tunnel

syndrome. (PageID 294-95.) When examined by Dr. Vincent, he found Allen's right

hand was held in a flexed position with hypertrophy of the brachioradialis in the arm,

atrophy of the extensor muscles of the hand, weakness of the muscles that extend the

wrist and the fingers, and weakness in thumb abduction. (PageID 294.)

On August 19, 2010, Allen complained to Dr. Vincent of numbness in his right

palm. Dr. Vincent found a decreased pin prick and light touch in plaintiff’s right hand

and weakness in plaintiff’s right hand grip finger abduction and wrist extension. He

recommended that plaintiff follow up with Dr. Cassandra. (PageID 525-26.)

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Gerald Klyop, M.D./Diane Manos, M.D. On December 17, 2008 , Dr. Klyop, a

state agency physician, conducted a physical residual functional capacity assessment

based on plaintiff's record. (PageID 435-42.) Dr. Klyop found that Allen retained the

ability to occasionally lift 50 pounds, frequently lift 25 pounds, stand or walk about six

hours in an eight-hour workday, sit for about six hours in an eight-hour work day, and

push or pull was unlimited. (PageID 436.) He found Allen would be limited to

frequently kneel. (Page ID 437.) Dr. Klyop further limited Allen to only frequently

perform handling and fingering with the right upper extremity. (PageID 438.) Dr.

Klyop concluded that Allen’s symptoms were attributable to a medically determinable

impairment. Dr. Klyop found Allen’s statements were partially credible. (PageID 440.)

Another state agency physician, Dr. Manos affirmed Dr. Klyop’s assessment in June

2009. (PageID 456.)

Gary L. Rea, M.D. Plaintiff saw Dr. Rea with complaints of back pain on May 22,

2009. Upon examination, Allen had a full range of motion, normal strength, and intact

reflexes in his arms, multiple positive Waddell’s signs with simulated rotation,

simulated compression, and severe tenderness. Dr. Rea also noted Allen exhibited “a

multitude of chronic pain behaviors, with groaning and slowness of movement.” 

Plaintiff’s strength in his legs was normal. Dr. Rea opined that plaintiff did not require

surgery, and that plaintiff would receive more benefit with weight loss and exercise.

(PageID 468-69.)

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On June 16, 2010, Dr. Rea noted that plaintiff had normal strength in his legs and

a full range of motion in his hips and legs, but that plaintiff reported pain with “almost

all movements” of his legs and exhibited tenderness in multiple areas. Dr. Rea noted

that Allen does have “symptoms that sound like stenosis.” He ordered additional tests. 

Dr. Rea cautioned Allen that, “ I am not sure at all that surgery will make him better. 

He has complaints and findings that look more like chronic pain than a surgical

problem. He and I had talked a year ago about stopping smoking, losing weight, and

that those had as good a chance of making him better as surgery, and he really has not

tried to do any of those. However, that doesn't mean he doesn't hurt. I cautioned him

that smoking decreases the chance of a good outcome in surgery by 20%, as well.”

(PageID 463-64.)

When seen on August 6, 2010, Dr. Rea reported that plaintiff’s straight leg raise

test was negative and his reflexes were normal and symmetric. Dr. Rea also found

positive Waddell’s signs of simulated compression and rotation causing pain. Dr. Rea

concluded that Allen’s studies showed some degenerated disc and mild narrowing, but

he opined that surgery would not help plaintiff’s pain. (PageID 461.)

Psychological Impairments.

Jeremy D. Kaufman, Psy.D. Dr. Kaufman evaluated Allen on behalf of the Ohio

Department of Jobs and Family Services on March 14, 2008. (PageID 263-70.) Allen

indicated an episode consisting of irritable and depressed mood, feeling worthless,

insomnia, suicidal ideation, anhedonia, occasional psychomotor retardation, and

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decreased concentration. (PageID 264.) Allen also reported a history of drinking

heavily daily, nine DUIs, and at the time of the examination, he was drinking on the

weekends, smoking marijuana occasionally and smoking up to two packs of cigarettes a

day. (PageID 265.) He appeared to be agitated and irritable but with no indications of

anxiety; his thought processes seemed clear and coherent and thought content within

normal limits. (PageID 266.) Personality and symptom inventories were in the clinical

range for anxiety and depression and were borderline clinical range for alcohol and

substance use. (PageID 266-67.) Dr. Kaufman diagnosed a major depressive disorder,

single episode, moderate; alcohol dependence; and cannabis dependence. He assigned

Allen a Global Assessment of Functioning (“GAF”) score of 55. Dr. Kaufman concluded

that “from a purely psychological perspective, [plaintiff] is unemployable.” (PageID

267.)

 Dr. Kaufman also completed a Mental Functional Capacity Assessment wherein

he found Allen was markedly impaired in his ability to perform activities with a

schedule and be punctual, the ability to work in coordination or proximity with others

without being distracted by them, the ability to interact appropriately with the general

public, the ability to accept instructions and respond appropriately to criticism from

supervisors, the ability to get along with coworkers or peers without distracting them or

exhibiting behavior extremes, and the ability to maintain socially appropriate behavior

and to adhere to basic standards of neatness and cleanliness. Dr. Kaufman found Allen

was moderately impaired in his ability to sustain an ordinary routine without special

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supervision, to make simple work-related decisions, to ask simple questions or request

assistance, to respond appropriately to changes in the work setting, to be aware of

normal hazards and take appropriate precautions, and to set realistic goals or make

plans independently of others, to understand, remember, and carry out detailed

instructions and to maintain concentration for extended periods, but no significant

impairment of ability to remember locations and work-like procedures, to understand,

remember, and carry out very short and simple instructions. (PageID 269.)

Allan Rain, M.A. Psychologist Allan Rain performed a consultative

psychological examination at the request of the Bureau of Disability Determination on

October 27, 2008. (PageID 403-08.) Allen reported no history of alcohol or drug

involvement. (PageID 405.) On mental status examination, his affect was flat, he had

difficulty concentrating and comprehending during the examination. Allen exhibited

sad and withdrawn behavior. (PageID 405-06.) Mr. Rain noted that Allen was oriented

times two, exhibited problems not only with computation but also with recall and

concentration, and could not provide the meaning of either proverb asked of him.

(PageID 406-07.) Mr. Rain noted that Allen's transposition of numbers during the Digit

Span test raised the possibility of an organic mood disorder, “particularly in light of the

two substance abuse diagnoses provided by [Dr. Kaufman].” (PageID 407.) Mr. Rain

diagnosed a dysthymic disorder and assigned him a GAF score of 50 but noted that

from a functional perspective Allen’s GAF score was 75. (PageID 408.) Mr. Rain opined

that Allen was markedly impaired in his abilities to: relate to others, including

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co-workers and supervisors; understand and carry our simple instructions; maintain

attention, concentration, persistence and pace to tend to simple, repetitive tasks; and

withstand the stressors and pressures associated with daily and work life. (PageID

407-08). 

Irma Johnston, Psy.D./Carl Tishler, Ph.D. After her review of the record on

November 19, 2008, state agency psychologist, Dr. Johnston, reported that medically

determinable impairments of major depressive disorder and dysthymic disorder,

alcohol dependence and cannabis dependence were present, but were not severe. 

(PageID 412, 417.) Dr. Johnston opined that Allen was mildly limited his activities of

daily living, moderately limited in maintaining social functioning and in maintaining

concentration, persistence or pace, and no episodes of decompensation. (PageID 419.) 

Dr. Johnston further determined that the evidence did not establish the presence of the

“C” criteria. (PageID 420.) Dr. Johnston reported that the field office claims

representative, “noted no problems in the face to face interview. Claimant was

cooperative, pleasant and responsive.” (PageID 425.) Dr. Johnston gave Mr. Rain’s

assessment only limited weight given the differences in Allen’s appearance between the

two examinations. (PageID 425.) When discussing Dr. Kaufman's findings, Dr. Johnson

noted that Allen presented with a “different presentation” to Dr. Kaufman and when

considering all the evidence and documentation, moderate limitations in work related

functioning are more appropriate. (PageID 425-26.) Dr. Johnston concluded that Allen

could understand, recall and perform simple repetitive tasks on a routine basis, and that

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he could adapt to “a relatively static work like setting where there are no strict

production quotas and where the required interactions with others are minimal.” 

(PageID 426.) In April 2009, Dr. Tishler, another state agency psychologist, affirmed Dr.

Johnston’s assessment. (PageID 446.)

Administrative Law Judge’s Findings. The administrative law judge found that:

1. The claimant has not engaged in substantial gainful activity since August

27, 2008, the application date (20 CFR 416.971 et seq.).

2. The claimant has the following severe impairments: obesity, degenerative

disc disease of the lumbar spine, residuals of tendon transfer and carpal

tunnel repair on the right, and depression (20 CFR 416.920(c)).

3. The claimant does not have an impairment or combination of impairments

that meets or medically equals one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

4. After careful consideration of the entire record, [the administrative law

judge] find[s] that the claimant has the residual functional capacity to

perform medium work as defined in 20 CFR 416.967(c) except with no

more than frequent kneeling, no more than frequent gross and fine

manipulation with the right dominant hand, no more than simple, routine,

repetitive tasks with no production rate or pace work and no more than

occasional interaction with the public and with coworkers.

5. The claimant is unable to perform any past relevant work (20 CFR

416.965).

6. The claimant was born on July 30, 1971 and was 37 years old, which

is defined as a younger individual age 18-49, on the date the

application was filed (20 CFR 416.963).

7. The claimant has at least a high school education and is able to

communicate in English (20 CFR 416.964).

8. Transferability of job skills is not an issue in this case because the

claimant's past relevant work is unskilled (20 CFR 416.968).

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9. Considering the claimant's age, education, work experience, and

residual functional capacity, there are jobs that exist in significant

numbers in the national economy that the claimant can perform (20

CFR 416.969 and 416.969(a)).

10. The claimant has not been under a disability, as defined in the

Social Security Act, since August 27,2008, the date the application

was filed (20 CFR 416.920(g)).

(PageID 61-68, citation to record omitted.)

Standard of Review. Under the provisions of 42 U.S.C. §405(g), “[t]he findings

of the Commissioner as to any fact, if supported by substantial evidence, shall be

conclusive. . . .” Substantial evidence is “‘such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389,

401 (1971)(quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is

“‘more than a mere scintilla.’” Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir.

1976). The Commissioner’s findings of fact must be based upon the record as a whole. 

Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366

(6th Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining

whether the Commissioner’s decision is supported by substantial evidence, the Court

must “‘take into account whatever in the record fairly detracts from its weight.’” Beavers

v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978)(quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1950)); Wages v. Secretary of Health and

Human Services, 755 F.2d 495, 497 (6th Cir. 1985).

Plaintiff’s Arguments. Allen argues that the decision of the Commissioner

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denying benefits should be reversed because:

• The administrative law judge's determination of plaintiff's physical residual

functional capacity violated the treating physician rule and lacked the support of

substantial evidence. Plaintiff contends that the administrative law judge’s

analysis of Dr. Olson’s opinion was procedurally deficient. Specifically, plaintiff

argues the administrative law judge failed to mention the Section 1527(c) factors,

other than the existence of a treating relationship; failed to analyze why Dr.

Olson, as the sole treating source opinion of record, was not granted controlling

weight; and failed to provide any reasons, good or otherwise, for giving “little

weight” to Dr. Olson’s opinion. Plaintiff also contends that the administrative

law judge’s adoption of Dr. Klyop and Dr. Manos, the state agency physicians

opinions, over Dr. Olson’s opinion violated SSR 96-6p. (Doc. 10 at PageID 584-90.)

• The administrative law judge's determination of plaintiff’s mental residual

functional capacity violated SSR 96-6p and lacked the support of substantial

evidence. Plaintiff argues that the weight of the psychological evidence on the

whole supported the limitations of the examining psychologists, Dr. Kaufman

and Mr. Rain. The administrative law judge sought instead to rely upon the

opinion of Dr. Johnston, a non-examining source. According to Allen, the mental

residual functional capacity determination in this case violated SSR 96-6p, failed

to accord the best longitudinal evidence of record, and lacked the support of

substantial evidence. (Doc. 10 at PageID 590-94.)

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Analysis. 

In his first assignment of error, plaintiff complains that the administrative law

judge improperly rejected the opinion of his treating physician, Dr. Olson. 

Treating Physician: Legal Standard. A treating doctor's opinion2

 on the

issue of disability is entitled to greater weight than that of a physician who has

examined plaintiff on only one occasion or who has merely conducted a paper review of

the medical evidence of record. Hurst v. Schweiker, 725 F.2d 53, 55 (6th Cir. 1984);

Lashley v. Secretary of Health and Human Services, 708 F.2d 1048, 1054 (6th Cir. 1983). The

Commissioner’s regulations explain that Social Security generally gives more weight to

a treating doctors’ opinions because treators are usually “most able to provide a

detailed, longitudinal picture” of the claimant’s medical impairments. 20 C.F.R. §

416.927(c)(2)3. When the treating doctor’s opinion “is well-supported by medically

2

The Commissioner’s regulations define “medical opinions” as “statements from

physicians and psychologists or other acceptable medical sources that reflect judgments about

the nature and severity of your impairment(s), including your symptoms, diagnosis and

prognosis, what you can still do despite impairment(s), and your physical or mental

restrictions.” 20 C.F.R. § 416.927(a)(2). Treating sources often express more than one medical

opinion, including “at least one diagnosis, a prognosis and an opinion about what the

individual can still do.” SSR 96-2p, 1996 WL 374188, at *2. When an administrative law judge

fails to give a good reason for rejecting a treator’s medical opinion, remand is required unless

the failure does not ultimately affect the decision, i.e., the error is de minimis; see Wilson v.

Commissioner of Social Sec., 378 F.3d 541, 547 (6th Cir. 2004). So reversible error is not committed

where the treator’s opinion “is patently deficient that the Commissioner could not possibly

credit it;” the administrative law judge’s findings credit the treator’s opinion or makes findings

consistent with it; or the decision meets the goal of 20 C.F.R. § 416.927(d)(2) but does not

technically meet all its requirements. Id.

3

20 C.F.R. §§ 404.1527 and 416.927 were amended effective March 26, 2012. The provisions

governing the weight to be afforded a medical opinion were previously found at 20 C.F.R. §§

404.1527(d) and 416.927(d).

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acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the

other substantial evidence in your case record” the Commissioner “will give it

controlling weight. “ Id.

Even though a claimant's treating physician may be expected to have a greater

insight into his patient's condition than a one-time examining physician or a medical

adviser, Congress specifically amended the Social Security Act in 1967 to provide that

to be disabling an impairment must be "medically determinable." 42 U.S.C.

§423(d)(1)(A). Consequently, a treating doctor's opinion does not bind the

Commissioner when it is not supported by detailed clinical and diagnostic test

evidence. Warner v. Commissioner of Social Security, 375 F.3d 387, 390 (6th Cir.

2004);Varley v. Secretary of Health and Human Services, 820 F.2d 777, 779-780 (6th Cir.

1987); King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1983); Halsey v. Richardson, 441 F.2d

1230, 1235-1236 (6th Cir. 1971); Lafoon v. Califano, 558 F.2d 253, 254-256 (5th Cir. 1975).

20 C.F.R. §416.913(b), (c), (d), 416.926(b), and 416.9274

.

The Commissioner's regulations provide that she will generally “give more

weight to the opinion of a source who has examined you than to the opinion of a source

who has not examined you.” 20 C.F.R. § 416.927(c)(1). When a treating source’s

4

Section 416.927(a)(1) provides:

You can only be found disabled if you are unable to do any substantial gainful activity by reason

of any medically determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not less than 12

months.(See §416.905.) Your impairment must result from anatomical, physiological, or

psychological abnormalities which are demonstrable by medically acceptable clinical and

laboratory diagnostic techniques. (See §416.908.)

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opinion “is well-supported by medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial evidence in your case

record, we will give it controlling weight.” 20 C.F.R. § 416.927(c)(2). In determining

the weight to assign a treating source's opinion, the Commissioner considers the length

of the relationship and frequency of examination; nature and extent of the treatment

relationship; how well-supported the opinion is by medical signs and laboratory

findings; its consistency with the record as a whole; the treating source's specialization;

the source's familiarity with the Social Security program and understanding of its

evidentiary requirements; and the extent to which the source is familiar with other

information in the case record relevant to decision. Id. Subject to these guidelines, the

Commissioner is the one responsible for determining whether a claimant is disabled. 20

C.F.R. § 416.927(d)(1).

SSR 96-2p provides that “[c]ontrolling weight cannot be given to a treating

source's medical opinion unless the opinion is well-supported by medically acceptable

clinical and laboratory diagnostic techniques.” Consequently, the decision-maker must

have “an understanding of the clinical signs and laboratory findings and what they

signify.” Id. When the treating source's opinion “is well supported and not inconsistent

with the other substantial evidence in the case record, it must be given controlling

weight . . . .” The Commissioner’s regulations further provide that the longer a doctor

has treated the claimant, the greater weight the Commissioner will give his or her

medical opinion. When the doctor has treated the claimant long enough “to have

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obtained a longitudinal picture of your impairment, we will give the source’s [opinion]

more weight than we would give it if it were from a non-treating source.” 20 C.F.R.

§416.927(c)(2)(i).

The Commissioner has issued a policy statement about how to assess treating

sources’ medical opinions. SSR 96-2p emphasizes:

1. A case cannot be decided in reliance on a medical opinion without

some reasonable support for the opinion.

2. Controlling weight may be given only in appropriate circumstances

to medical opinions, i.e., opinions on the issue(s) of the nature and

severity of an individual’s impairment(s), from treating sources.

3. Controlling weight may not be given to a treating source’s medical

opinion unless the opinion is well-supported by medically acceptable

clinical and laboratory diagnostic techniques.

4. Even if a treating source’s medical opinion is well-supported, controlling

weight may not be given to the opinion unless it also is “not inconsistent”

with the other substantial evidence in the case record.

5. The judgment whether a treating source’s medical opinion is well

supported and not inconsistent with the other substantial evidence in

the case record requires an understanding of the clinical signs and

laboratory findings and what they signify.

6. If a treating source’s medical opinion is well-supported and not

inconsistent with the other substantial evidence in the case record, it

must be given controlling weight; i.e., it must be adopted.

7. A finding that a treating source’s medical opinion is not entitled to

controlling weight does not mean that the opinion is rejected. It may

still be entitled to deference and be adopted by the adjudicator.

Even when the treating source’s opinion is not controlling, it may carry sufficient

weight to be adopted by the Commissioner:

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Adjudicators must remember that a finding that a treating source medical

opinion is not well-supported by medically acceptable clinical and

laboratory diagnostic techniques or is inconsistent with the other

substantial evidence in the case record means only that the opinion is not

entitled to “controlling weight,” not that the opinion should be rejected.

Treating source medical opinions are still entitled to deference and must

be weighed using all of the factors provided in 20 CFR 404.1527 and

416.927. In many cases, a treating source's medical opinion will be entitled

to the greatest weight and should be adopted, even if it does not meet the

test for controlling weight.

SSR 96-2p.

The case law is consistent with the principals set out in Social Security Ruling 96-

2p. A broad conclusory statement of a treating physician that his patient is disabled is

not controlling. Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984). For the treating

physician's opinion to have controlling weight it must have "sufficient data to support

the diagnosis." Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 536, 538 (6th

Cir. 1981); Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). The Commissioner may

reject the treating doctor's opinions when "good reasons are identified for not accepting

them." Hall v. Bowen, 837 F.2d 272, 276 (6th Cir. 1988); 20 C.F.R. § 416.927(c)(2)("We

will always give good reasons in our notice of determination or decision for the weight

we give your treating source's opinion"); Wilson v. Commissioner of Social Security, 378

F.3d 541, 544 (6th Cir. 2004). Even when the Commissioner determines not to give a

treator’s opinion controlling weight, the decision-maker must evaluate the treator’s

opinion using the factors set out in 20 C.F.R. § 404.1527(d)(2). Wilson, 378 F.3d at 544;

Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009). There remains a rebuttable

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presumption that the treating physician's opinion "is entitled to great deference." Rogers

v. Commissioner of Social Security, 486 F.3d 234, 242 (6th Cir. 2007); Hensley, above. The

Commissioner makes the final decision on the ultimate issue of disability. Warner v.

Commissioner of Social Security, 375 F.3d at 390; Walker v. Secretary of Health & Human

Services, 980 F.2d 1066, 1070 (6th Cir. 1992); Duncan v. Secretary of Health and Human

Services, 801 F.2d 847, 855 (6th Cir. 1986); Harris v. Heckler, 756 F.2d at 435; Watkins v.

Schweiker, 667 F.2d 954, 958 n.1 (11th Cir. 1982).

Treating Doctor: Discussion. With respect to the opinion of Dr. Olson, the

administrative law judge stated:

As for the opinion evidence, little weight is given to the opinion of Dr.

Olson, who the claimant testified has been his primary physician for four

or five years. Dr. Olson completed a form on July 27, 2010 indicating that

the claimant can stand two hours, walk two hours, sit two hours, lift up to

ten pounds occasionally, but can use feet for operating foot controls, can

reach above shoulder level, can bend and can climb steps occasionally but

cannot perform no grasping, pushing or pulling or fine manipulation, and

cannot squat, crawl, or climb ladders (Exhibit 20F). Dr. Olson further

remarked that the claimant is unable to sit or stand without breaks, that

his knees and back "give" with stress, that the claimant's pain level

decreases concentration and focus, that numerous breaks are needed, that

his condition will worsen with age and physical activity, and that

rehabilitation has failed and surgery is pending; diagnoses included

lumbar strain sprain, spinal stenosis, and glenoid tear of the left shoulder

(Exhibit 20F p 3). A form completed and signed by a physician's assistant

in Dr. Olson's office on April 28, 2009 shows that the claimant was first

seen in that office on May 30, 2007 that diagnoses were" HNP L5-S1, L3-4,

chronic" and "morbid obesity," that the claimant is not a surgical candidate

because he smokes a pack of cigarettes daily and has a body mass index of

43, that the claimant's only prescribed therapy was medication not

prescribed from that office, and that the claimant may do sedentary work

(Exhibits 16F and 17F). That form also referenced notes that were not

attached.

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(PageID 51.) Plaintiff argues that “the ALJ stated no reasons, let alone good reasons, for

effectively rejecting Dr. Olson’s opinion.” (Doc. 10 at PageID 587.) The administrative

law judge's reasons for assigning “little” weight Dr. Olson’s opinions is supported by

substantial evidence. The administrative law judge properly noted that Dr. Olson’s

opinion was internally inconsistent. (PageID 51.) As noted above, Dr. Olson opined

that Allen could only stand, walk, or sit for two hours each in an eight-hour day, with

breaks, and only lift up to 10 pounds occasionally. (PageID 458-59.) However, Dr.

Olson offered no objective findings to support his opinion and his opinion is

inconsistent with the questionnaire completed by the physician assistant in Dr. Olson’s

office, Eric Chilton. In April 2009, Mr. Chilton reported that Allen was not a candidate

for surgery and that his only therapy was medication that was not prescribed by Dr.

Olson’s office. (PageID 450-51.)

Contrary to plaintiff’s argument, Dr. Rea’s treatment notes do not support Dr.

Olson’s opinion, and rather, lend support to the administrative law judge’s finding.

Specifically, a review of Dr. Rea’s office notes reflect that in August 2010, he found

plaintiff’s straight leg raise test was negative, his reflexes were normal and symmetric

and he found positive Waddell's signs. (PageID 461.) Dr. Rea’s treatment notes also

reveal that plaintiff exhibited signs of symptom exaggeration. (PageID 461, 464, 468.) 

Similarly, Dr. Cassandra, who performed a right carpal tunnel release and right

forearm tendon transfer, reported by October 2010 that plaintiff was doing well. 

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(PageID 324, 472.) Dr. Olson’s opinion was also contradicted by Dr. Cole’s examination

findings and with Dr. Weiss’ September 2008 assessment. (PageID 355, 383, 395.) Dr.

Olson’s report was particularly inconsistent with Dr. Cole’s indication that plaintiff’s

right leg pain had been completely resolved, with the MRI findings, CT scan, and EMG

results that demonstrated only mild abnormalities. (PageID 245, 355, 570.)

Plaintiff also argues the administrative law judge cannot rely on the opinions of

reviewing physicians to justify his residual functional capacity assessment.

With respect to Dr. Klyop and Dr. Manos, the administrative law judge stated:

Great weight is given to the opinion of the State agency physicians, Dr.

Klyop and Dr. Manos who reviewed all the records available on

December 17, 2008 and June 30, 2009, and concluded that the claimant is

able to lift fifty pounds occasionally, 25 pounds frequently, stand or walk

for six hours in an eight hour work day and is unlimited in use of the left

upper extremity and can frequently perform handling and fingering with

the right upper extremity (Exhibits 13F and 19F). At the time of the

hearing, the claimant was not taking the morphine he testified had

previously been prescribed, and did not appear to be in significant pain.

(PageID 51.) The opinions of non-examining state agency medical consultants have

some value and can, under some circumstances, be given significant weight. This

occurs because the Commissioner views nonexamining sources “as highly qualified

physicians and psychologists who are experts in the evaluation of the medical issues in

disability claims under the [Social Security] Act.” SSR 96-6p. Consequently, opinions of

one-time record-reviewing physicians are weighed under the same factors as treating

physicians including supportability, consistency, and specialization. See 20 C.F.R.

§416.927(e). 

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For these reasons, the record contained substantial evidence supporting the

administrative law judge’s weighing of Dr. Olson’s, Dr. Klyop’s, and Dr. Manos’

opinions. 

Turning to Allen’s arguments concerning his mental residual functional capacity,

he argues that the administrative law judge was incorrect in rejecting Mr. Rain’s

opinion and “cherry picking” Dr. Kaufman’s opinion. 

With respect to the mental impairment opinion evidence, the administrative law

judge stated:

Little weight is given to the opinion of, Dr. Kaufman, the psychologist

who examined the claimant at the request of the State agency, that "from a

purely psychological perspective, the patient is unemployable" (Exhibit 2F

p 7). The question of whether the claimant is unemployable is the ultimate

issue reserved to the Commissioner. Dr. Kaufman also stated that

the "impairments are expected to last 9 to 11 months" and the claimant's

condition might improve with combined psychotropic medication and

cognitive behavioral therapy (Exhibit 2F p 7). Little weight is also given to

Dr. Kaufman's opinion that the claimant has marked impairment in ability

to perform activities with a schedule and be punctual, the ability to work

in coordination or proximity with others without being distracted by

them, the ability to interact appropriately with the general public, the

ability to accept instructions and respond appropriately to criticism from

supervisors, the ability to get along with coworkers or peers without

distracting them or exhibiting behavior extremes, and the ability to

maintain socially appropriate behavior and to adhere to basic standards of

neatness and cleanliness (Exhibit 2F p 9). Some weight is given to Dr.

Kaufmann's opinion that the claimant has moderate impairment of ability

to sustain an ordinary routine without special supervision, to make simple

work-related decisions, to ask simple questions or request assistance, to

respond appropriately to changes in the work setting, to be aware of

normal hazards and take appropriate precautions, and to set realistic goals

or make plans independently of others (Exhibit 2F p 9). Great weight is

given to Dr. Kaufman's opinion that the claimant has moderate

impairment of ability to understand, remember, and carry out detailed

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instructions and to maintain concentration for extended periods, but no

significant impairment of ability to remember locations and work-like

procedures, to understand, remember, and carry out very short and

simple instructions (Exhibit 2F p 9).

Little weight is also given to the opinion of Mr. Rain, the psychologist who

conducted a second psychological evaluation by on October 27, 2008 at the

request of the State agency, as to marked impairment in all areas. The

claimant reported no history of alcohol or drug involvement, exhibited

sad and withdrawn features, and was diagnosed with dysthymic disorder

of moderate severity (Exhibit 9F). Mr. Rain assessed and a global

assessment of functioning score of 50, but also stated "although from a

functional perspective he appears to rate a GAF of 75 because he seems to

have developed maintenance levels of function with his condition and

reports he can lead an independent lifestyle" (Exhibit 9F p 6). The claimant

provided an inaccurate history, and Mr. Rain's conclusion as to degree of

impairment was not consistent with his findings.

Great weight is given to the opinions of the State agency psychologists

who reviewed the records available on November 19, 2008 and April4,

2009 and concluded that the claimant has an affective disorder, dysthymic

disorder, with mild restriction of activities of daily living, moderate

difficulties in social functioning, moderate difficulties in maintaining

concentration, persistence, and pace, and no episodes of decompensation

(Exhibits 10F and 15F). The State agency psychologists also concluded that

the claimant's mental impairment would not prevent him from

understanding, recalling, and performing simple repetitive tasks on a

routine basis or from adapting to a relatively static work-like setting

where there are no strict production quotas and where the required

interactions with others are minimal (Exhibits 11F and 15F). This opinion

is more consistent with the evidence as a whole, including the claimant's

testimony.

(PageID 51-52.)

Based on the administrative law judge's consideration of the record evidence as a

whole, he reasonably concluded that plaintiff was limited to no more than simple,

routine, repetitive tasks with no production rate or pace work and no more than

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occasional interaction with the public and with coworkers. These limitations are

consistent with those in the opinions of the reviewing psychologists, Dr. Johnston and

Dr. Tishler, who concluded that Allen could understand, recall and perform simple

repetitive tasks on a routine basis, and that he could adapt to "a relatively static work

like setting where there are no strict production quotas and where the required

interactions with others are minimal." (PageID 426.) The administrative law judge

reasonably relied on these medical source opinions as he believed their opinions best

reflected an evaluation of the record evidence as a whole and accounted for plaintiff's

credible limitations. (PageID 52.) See 20 C.F.R. § 416.927(e).

In further support of his mental residual functional capacity determination, the

administrative law judge noted that Allen had not received any mental health

treatment. The administrative law judge also observed that Allen’s reported activities

including watching movies and drinking beer and visiting with his girlfriend's cousins

which are not consistent with more than moderate impairment of concentration or of

ability to get along with others. (PageID 51.) 

The Court finds that the mental residual functional capacity as determined by the

administrative law judge is supported by substantial evidence. Although the mental

residual functional capacity selected by the administrative law judge might not be the

same residual functional capacity that plaintiff would have selected, the administrative

law judge clearly explained his rationale, and the residual functional capacity is,

without question, within the permissible “zone of choice” which the Sixth Circuit

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discussed in Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir.1994). The administrative law

judge's residual functional capacity is thus not subject to reversal.

Accordingly, it is RECOMMENDED that the decision of the Commissioner of

Social Security be AFFIRMED. It is FURTHER RECOMMENDED that plaintiff’s

motion for summary judgment be DENIED and that defendant’s motion for summary

judgment be GRANTED.

If any party objects to this Report and Recommendation, that party may,

within fourteen (14) days, file and serve on all parties a motion for reconsideration by

the Court, specifically designating this Report and Recommendation, and the part

thereof in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B);

Rule 72(b), Fed. R. Civ. P.

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District

Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See

also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

 s/Mark R. Abel 

United States Magistrate Judge

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